Angad Singh vs State Of U.P. And Another
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Allahabad High Court

Angad Singh vs State Of U.P. And Another on 1 October, 2024

Author: Manju Rani Chauhan

Bench: Manju Rani Chauhan

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:160709
 
Court No. - 75
 
Case :- APPLICATION U/S 482 No. - 20900 of 2024
 
Applicant :- Angad Singh
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rahul Mishra
 
Counsel for Opposite Party :- G.A.,Mainuddin Ahamad,Mohd. Irfan
 

 
Hon'ble Mrs. Manju Rani Chauhan,J.
 

1. Heard Mr. Rahul Mishra, learned counsel for the applicant, Mohd. Irfan, learned counsel for the opposite party no.2 as well as learned AGA for the State and perused the material on record.

2. This application under Section 482 Cr.P.C. has been filed by the applicant with a prayer to quash the impugned order dated 03.06.2024 passed by the court of Special Judge (S.C./S.T. Act), Mau, allowing the application 44kha, as preferred by informant, under section 311 Cr.P.C. in S.T. No.113 of 2017 (State of U.P. vs. Angad Singh & Others), arising out of Case Crime No.77 of 2013, under Sections 323, 325, 504, 506 I.P.C. and Section 3(1)10 S.C./S.T. Act, Police Station- Kotwali, Mau, District- Mau.

3. Brief facts of the case are that an FIR has been lodged through an application under Section 156(3) Cr.P.C. with the allegations that the opposite party no.2 belongs to scheduled caste and on 13.10.2012 at about 10:00 P.M., his neighbours namely Angad Singh (applicant) along with co-accused Babban Singh, his three sons namely Veer Pratap, Bhanu Pratap and the eldest son, his brother-in-law Bheera Singh, Vijay Kumar Tiwari and 5 to 7 unknown persons were breaking the sewage pipe of the opposite party no.2. Hearing the noise, the opposite party no.2 along with his wife and daughter tried to restrain the accused persons from doing so, on which all the accused persons assaulted the informant as well as his wife and daughter with lathi, danda & fist and used unparliamentary language & caste indicative words. The co-accused Babban assaulted the opposite party no.2 with lathi causing an injury on his head. The applicant Angad, the co-accused Veer Singh and others snatched away a gold earring from the wife of opposite party no.2 and a gold chain from the daughter of opposite party no.2. Hearing the hue and cry, the neighbours of opposite party no.2 came at the place of incident but none tried to intervene due to fear of the accused persons.

4. After investigation charge sheet has been submitted on 24.02.2013. The matter was further investigated and a charge sheet dated 19.05.2015 has been submitted affirming the earlier charge sheet. In the trial proceedings, when the matter came up for evidence, the P.W. No.1 was examined on 28.05.2017, P.W. No.2 (wife of the complainant) was examined on 06.06.2019 and P.W. No.3 (daughter of the complainant) was examined on 03.01.2022. An application under Section 311 Cr.P.C. was moved by the opposite party no.2 on 17.01.2024 with a request for examination of one Shankar Lal. The aforesaid application has been allowed by order dated 03.06.2024. Hence the present application.

5. Learned counsel for the applicant submits that order impugned dated 03.06.2024 has been passed without application of judicial mind and in a mechanical manner. He further submits that for the incident dated 13.10.2012, an application under Section 156(3) Cr.P.C. was moved on 14.12.2012 by the opposite party no.2 and after investigation, charge sheet has been submitted on 24.02.2013. The matter was further investigated and the earlier charge sheet came to be affirmed on 19.05.2015. The matter came up for evidence and P.W. No.1, P.W. No.2 and P.W. No.3 have been examined on 28.05.2017, 06.06.2019 and 03.01.2022 respectively. After passage of nearly two years an application under Section 311 Cr.P.C. has been moved by the opposite party no.2 on 17.01.2024 requesting for examination of one Shankar Lal. He further contends that at no point of time, name of Shankar Lal surfaced as witness i.e. neither in the application under Section 156(3) Cr.P.C. nor in the statements of the witnesses. He is neither charge sheeted witness and after examination of prosecution witnesses, the present application has been moved out of the blue taking name of Shankar Lal who is said to be witness of the incident and without considering the aforesaid, the application as moved by the opposite party no.2 has been allowed by order dated 03.06.2024 permitting examination of Shankar Lal which is not justified in the eyes of law.

6. He further submits that statement of Shankar Lal has never been recorded during the course of investigation and after about 11 years' of lodging of the FIR and 7 years' after the matter went into trial, a complete stranger is being introduced as independent witness to fill in the blanks in the prosecution case, that too when it was pointed out by the trial court that there is no independent witness to support the prosecution case.

7. While passing the order impugned, the court below has not considered the objection as raised by the applicant and has also passed an unreasoned, absolutely cryptic and non-speaking order. The court below has also not considered the records of the case to verify from the same that the application as moved by the opposite party no.2 was totally on none existing facts, as no person in the name of Shankar Lal son of Pardesi was ever named, nor his name was taken by any of the witnesses including the informant, as the witness of the incident right from the initiation of the proceedings till submission of the charge sheet, further investigation that approved the earlier investigation as well as in examination of all the prosecution witnesses of the fact.

8. Learned counsel for the applicant while challenging the order impugned has placed reliance upon a judgment of Apex Court passed in the case of Vijay Kumar vs. State of U.P., reported in (2011) 8 SCC 136 wherein it has been held as follows :-

"Though Section 311 confers vast discretion upon the court and is expressed in the widest possible terms, the discretionary power under the said section can be invoked only for the ends of justice. Discretionary power should be exercised consistently with the provisions of the Code and the principles of criminal law. The discretionary power conferred under Section 311 has to be exercised judicially for reasons stated by the court and not arbitrarily or capriciously. Before directing the learned Special Judge to examine Smt Ruchi Saxena as a court witness, the High Court did not examine the reasons assigned by the learned Special Judge as to why it was not necessary to examine her as a court witness and has given the impugned direction without assigning any reason."

9. The aforesaid principle has also been reiterated in the case of Mannan Shaikh vs. State of W.B., reported in (2014) 13 SCC 59 and thereafter in Ratanlal vs. Prahlad Jat, reported in (2017) 9 SCC 340 and Swapan Kumar Chatterjee vs. CBI, reported in (2019) 14 SCC 328. The relevant paragraphs of Swapan Kumar Chatterjee vs. CBI are herein below :-

"10. The first part of this section which is permissive gives purely discretionary authority to the criminal court and enables it at any stage of inquiry, trial or other proceedings under the Code to act in one of the three ways, namely, (i) to summon any person as a witness; or (ii) to examine any person in attendance, though not summoned as a witness; or (iii) to recall and re-examine any person already examined. The second part, which is mandatory, imposes an obligation on the court (i) to summon and examine or (ii) to recall and re-examine any such person if his evidence appears to be essential to the just decision of the case.

11. It is well settled that the power conferred under Section 311 should be invoked by the court only to meet the ends of justice. The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this section to even recall witnesses for re-examination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law."

10. Learned counsel for the opposite party no.2 on the other hand submit that there is no illegality in passing of the order impugned as no witness turned up to give his statement due to fear of the applicant Relying upon a judgment passed in the case of Rakesh Mishra and other vs. State of U.P. and Another reported in 2013 SCC Online All 13134, he submits that it is clear from Section 231 of Cr.P.C. that the prosecution is entitled to produce any person as witness even though such person is not named in the earlier charge sheet. Thus, there is no illegality in the order impugned.

11. I have considered the submissions advanced by learned counsel for the parties and perused the record.

12. Before fathoming correctness of the submissions made by the learned counsel for the parties, it will be worthwhile to refer to Section 311 Cr.P.C., which reads as under:-

"311. Power to summon material witness, or examine person present:-. Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re- examine any person already examined; and the Court shall summon and examine or recall and reexamine any such person if his evidence appears to it to be essential to the just decision of the case."

13. It is admitted position that the name of Shankar Lal has been taken for the first time in the application as moved by the opposite party no.2 for getting him examined that too after the prosecution witnesses of fact have been examined. It is after passage of so many years that the aforesaid application has been moved that too on a non-existent ground. As regarding submission made by learned counsel for opposite party no.2 that there is no illegality in the order impugned in view of provisions of Section 231 Cr.P.C. as it is very clear from the aforesaid provision that any Judge can proceed to take all such evidence as may be produced in support of the prosecution on the date so fixed. The Judge may, in is discretion, permit the cross examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination. Thus, as per the provision, the stranger cannot be permitted to be examined, cross-examined or further cross-examined. The judgment as relied upon by the learned counsel for opposite party no.2 is not relevant in the facts of the present case.

14. Accordingly, the impugned order dated 03.06.2024 passed by the court of Special Judge (S.C./S.T. Act), Mau, allowing the application 44kha, as preferred by informant, under section 311 Cr.P.C. in S.T. No.113 of 2017 (State of U.P. vs. Angad Singh & Others), arising out of Case Crime No.77 of 2013, under Sections 323, 325, 504, 506 I.P.C. and Section 3(1)10 S.C./S.T. Act, Police Station- Kotwali, Mau, District- Mau is set-aside, with a direction to the trial court to proceed with the trial, in accordance with law.

15. The present Application under Section 482 Cr.P.C. is allowed, accordingly.

Order Date :- 1.10.2024

Kalp Nath Singh